Woodlawn Hospital

National Labor Relations Board - Board Decisions

Mar 11, 1985

274 N.L.R.B. 796 (N.L.R.B. 1985)

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodlawn Hospital and Hospital Employees' Labor
Program of Metropolitan Chicago. Case 13-
CA-13539
11 March 1985
SECOND SUPPLEMENTAL DECISION
AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 September 1980 Administrative Law Judge
Josephine H. Klein issued the attached Supplemen-
tal Decision on Remand. The General Counsel and
the Charging Party filed exceptions and supporting
briefs, and the Respondent filed cross-exceptions
and a brief supporting its cross-exceptions and op-
posing the General Counsel's and the Charging
Party's exceptions. The General Counsel also filed
an answering brief to the Respondent's cross-excep-
tions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
We agree with the findings and conclusions of
the judge. A union, in its role as the collective-bar-
gaining agent of employees, has broad authority to
act on behalf of those employees. Under the Act, a
collective-bargaining agent is the employees' exclu-
sive representative for collective bargaining regard-
ing terms and conditions of employment. A dis-
charge, or notice thereof, manifestly affects the
terms and conditions of employment. Accordingly,
a union may, depending on the circumstances, be
the agent of employees it represents for the pur-
pose of receiving a notice of discharge.
A strike is peculiarly a group action. Thus, in a
strike situation, it is particularly appropriate and
proper that the strikers' bargaining representative
be deemed to have broad authority to make and re-
ceive offers and proposals on behalf of strikers. For
example, the Board has held that a union is the
strikers' agent to receive an employer's offer to
return strikers to their jobs.' Similarly, a union
may also be the agent for receiving notice of an
employer's decision to terminate strikers. Where, as
here, a union, during a strike situation, receives
notice, as an outgrowth of its collective-bargaining
function,2 that the employer has discharged strikers
i See, e g, Birmingham Ornamental Iron Co, 251 NLRB 814 fn 1
(1980), and cases cited therein
2 It is significant that the Union's counsel, on 18 August 1972, respond-
ed on behalf of the strikers to the Respondent regarding the "locker"
letter As we note herein, the court has ruled that the "locker" letter con-
tained a clear notice of the strikers' discharges The Union not only knew
of the letter and its contents, but it also considered itself the strikers'
agent for the purpose of replying to the Respondent Similarly, the
represented by the union, that knowledge must be
imputed to the striking employees.
The court remanded this case in order that the
Board determine whether the Respondent, prior to
becoming subject to the Act, effectively communi-
cated to employees notice of their discharge.3 In
the court's view, if the discharges occurred before
the effective date of the Hospital Amendments of
1974, the striking employees were not subject to
the protections of the Act. Further, as we read the
court's opinion, it has ruled that the "locker"
letter-of which the Union was aware 2 years
before 25 August 1974-contained a clear notice of
discharge. Accordingly, as the employees' agent
had notice of the employees' discharges prior to
the Respondent becoming subject to the Act, we
shall, in agreement with the judge, dismiss the
complaint.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Union's letter of 6 August 1974 to the Federal Mediation and Concilia-
tion Service and the Illinois Department of Labor demonstrates that the
Union was acting on behalf of the strikers regarding their discharges
Clearly, the notice of the strikers ' discharges was received by and acted
on by the Union as a part of its role as the collective -bargaining agent for
the strikers Under the circumstances , the knowledge received by the
Union must be imputed to the strikers
3 Woodlawn Hospital Y NLRB, 596 F 2d 1330 (7th Cir 1979)
SUPPLEMENTAL DECISION ON REMAND
JOSEPHINE H. KLEIN, Administrative Law Judge On
August 15, 1977, I issued a decision and recommended
Order finding that Woodlawn Hospital (Respondent), a
health care institution under the Act" violated the Act
by refusing to reinstate 50 of its employees who had
gone on strike in 1972, before the Act was applicable to
health care institutions, but who had made unconditional
requests for reinstatement on August 25, 1974, after the
Act had been amended so as to cover health care institu-
tions.2 The Board affirmed my decision, although in part
on grounds different from mine. Woodlawn Hospital, 233
NLRB 782 (1977). However, the Court of Appeals for
the Seventh Circuit thereafter reversed the Board's deci-
sion as to 19 strikers and remanded the case for further
determination as to the remaining 40 Woodlawn Hospital
v. NLRB, 596 F.2d 1330 (7th Cir 1979). On the remand,
the Board provided the parties with an opportunity to
state their position. After the parties had fully set forth
their positions on both procedural and substantive issues,
the Board issued a Supplemental Decision and Order re-
manding the case to me for further hearing and the prep-
aration of a decision, including findings of fact and con-
i National Labor Relations Act, 29 U S C § 151 et seq
2 P L 93-360, 93d Cong S 3203, 88 Stat 395
274 NLRB No. 123
WOODLAWN HOSPITAL
clusions of law, and a recommended Order. Woodlawn
Hospital, 245 NLRB 975 (1979) Pursuant to the Board's
remand Order, a trial was held before me in Chicago, Il-
linois, on December 3 through 5, 1979. All parties were
represented by counsel and were afforded full opportuni-
ty to present written and oral evidence and argument
and to examine and cross-examine witnesses The parties
waived oral argument, and posttrial briefs have been
filed on behalf of the General Counsel, the Respondent,
and the Charging Party.
On the entire record, including those of both the origi-
nal trial and that on remand, and careful observation of
the witnesses and consideration of the briefs, I make the
following
FINDINGS OF FACT
1. BACKGROUND AND ISSUES
In June 1972 some 76 of Respondent's employees, rep-
resented by the Union, went on strike. Respondent and
the Union then took several steps in an attempt to re-
solve the dispute They engaged in a nonbinding fact-
finding proceeding, which included 2 days of hearings,
on August 2 and September 8, 1972.3 The Hospital re-
fused to accept the factfinder's report and decision.
There then ensued a course of negotiation for strike set-
tlement with both the Union and the Hospital represent-
ed by counsel. The negotiations were unsucessful, with
Respondent cutting them off on August 1, 1974, in view
of the imminence of the Hospital's coming within the ju-
risdiction of the Board pursuant to the Health Care Insti-
tutions amendment to the Act. On August 4, 1974, the
Union requested intervention by the Federal Mediation
and Conciliation Service and the Illinois Department of
Labor.
On August 25, 1974, the Union made an unconditional
offer to return to work on behalf of 64 named strikers.
Forty one of the sixty four strikers thereafter personally
applied for reinstatement and were treated as new appli-
cants for employment. Six of them were treated as new
applicants for employment. Six of them were offered and
accepted reemployment Of those six, three failed to pass
the physical examination required of new employees, and
the other three were reemployed.
On a charge filed by the Union, a complaint was
issued alleging that Respondent had refused to reinstate
59 named strikers, in derogation of their rights und. r the
Act, as construed and implemented in NLRB v.
Fleetwood Trailer Co, 389 U.S. 375 (1967), and Laidlaw
Corp, 171 NLRB 1366 (1968), enfd 414 F.2d 99 (7th
Cir. 1969).
In my original decision I found that 19 strikers had
been discharged before the Hospital became subject to
the Act. However, I held further that the Hospital had
rescinded the discharges by condoning the alleged mis-
conduct for which they had been discharged.
In my original decision I found that Respondent had
written to between 34 and 50 strikers, requesting that
they visit the Hospital and remove their personal belong-
3 Apparently the factftnding hearing convened on at least one other
day, but only the August 2 and September 8 sessions are relevant here
797
ings from their lockers. I held that the "locker" letters
amounted to notices of termination. However, I further
concluded that such ostensible discharges did not termi-
nate the recipients' employee status because they did not
reflect a true intention of the Hospital to terminate the
employees, but rather were "at most, tactical maneuvers
designed to lead the strikers to return to work," a con-
clusion supported by the fact that 36 of the strikers were
later offered reinstatement and, in the course of the ulti-
mately unsuccessful negotiations for a strike settlement,
Respondent had proposed to reinstate the strikers.
In my prior decision I also indicated that additional
strikers might have received notice of their discharges by
attendance at the factfinding hearing, where "Respond-
ent stated its position that the majority of the strikers
have been assumed to `have resigned from the hospital."'
However, I made no actual findings in this regard be-
cause of my holding that all terminations had been only
"tactical maneuvers" and/or had been rescinded.
The Board adopted my finding and conclusion that all
of the strikers were entitled to reinstatement under Laid-
law. But the Board's holding was grounded primarily on
its view that "striking employees, if discharged due to a
labor dispute, retain their rights to preferential reinstate-
ment under" Lardlaw; the Board expressly stated that it
"deem(ed) it unnecessary to rely on the finding of the
Administrative Law Judge that Respondent . . . rescind-
ed its discharge of the striking employees." Although not
expressly so stating, the Board had no occasion to pass
on my tactical maneuvers' finding.
The court rejected the Board's view, propounded by
the General Counsel and the Union, that, as a matter of
law, the strikers retained their employee status, regard-
less of whether Respondent had discharged them before
the Act became effective as to them .4 The court sus-
tained the finding that 19 strikers had been terminated
but rejected my further finding that the terminations had
been rescinded (or, otherwise stated, that Respondent
had condoned the conduct on which the terminations
had been based). Accordingly, the court reversed the
Board's order concerning these 19 strikers and ordered
dismissal of the complaint as to those 19. The Board ac-
cepted the remand and has dismissed the complaint as to
them.5
As to the remaining 40 strikers involved, the court
held that the "locker" letters constituted notice of dis-
charge but rejected my conclusion that Respondent did
not really intend to discharge the addressees but rather
was merely attempting to lead them to return to work.
Although the court made no express finding on this
score, it indicated that a striker's presence at the factfind-
ing hearing might be sufficient to establish effective
notice of his discharge
The crux of the court's opinion is:
4 The Board noted that Respondent had not shown that any of the
strikers had been guilty of misconduct which would warrant denying
them reinstatement as strikers
5 The Board's order actually lists only 18 strikers Apparently Atrlean
Robinson was inadvertently omitted Since I do not have authority to
amend a Board Order, I assume the Board will make the appropriate cor-
rection
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The "locker" letters . . clearly communicated to
the employees that they had been discharged:. . .
The difficulty presented however is that apparently
not all the strikers received these letters. The ad-
ministrative law judge found that between 34 and
50 of the strikers received the letters but that the
"precise number and identity of these strikers do
not appear." The judge also found that the dis-
charge may have been communicated to others as
well since "most of the strikers attended at least
some of [the] fact-finding hearings, at which Re-
spondent apparently made clear its position that the
strikers had resigned, pursuant to the resignation
rule in the personnel manual." . . . The issue of
who received effective notice was not resolved by
the judge since it was unnecessary to her decision.
Since these two events, the "locker" letter and the
announcement at the hearings , constitute the only
efforts to inform the employees of their termination,
we find it necessary to remand to the Board to de-
termine who was informed by the employer.
On the remand, after the parties had submitted their
views at considerable length , the Board issued its remand
order. So far as relevant at this point, the Board's order
said (245 NLRB 975 (1979)):
The court held . . . that any striking employees
who were discharged before August 25, 1974, . . .
lost their status as employees . . . and are not there-
fore entitled to reinstatement. The court added,
however, that in order to be effective the intent to
discharge must be communicated to the employ-
ee. . . . Regarding the . . . 40 strikers [here in-
volved], the court remanded this case to the Board
for a determination of which of these individuals
were informed of their discharge by Responden.
It is . . . ordered that this proceeding be remand-
ed to [the ALJ] for the purpose of holding a further
hearing to receive evidence as to which, if any, of
the remaining 40 strikers were effectively notified of
their termination by Respondent before [April] 25,
1974] . . . .
IT IS FURTHER ORDERED that, upon con-
clusion of such hearing , [the ALJ] shall prepare
. . a Supplemental Decision containing findings of
fact based upon the evidence received pursuant to
the provisions of this Order, conclusions of law, and
recommendations . . . .
II. COLLECTIVE NOTICE OF TERMINATION
A. The Merits
In my original decision, I said that the "precise
number and identity of the strikers [who received notice
of discharge] do not appear." As recognized by the court
and the Board, neither the Board nor I had occasion to
address "the issue of who received effective notice" of
discharge. 245 NLRB 975 at 976 fn. 10 (1979). However,
it was implicit in my decision that I was assuming that
notice of termination could be effective only if given by
Respondent to each striker directly and personally. In its
decision, the Board had no occasion to address the issue.
The case was then apparently presented to the court
with that implicit assumption unexamined. At the risk of
possible oversimplification, it may be said that the Board
and the Union sought generally to support the Board's
legal position that all the strikers remained employees,
and did not argue the sufficiency of the evidence of
notice of the discharge. Respondent apparently relied on
individual notices to the employees, in the form of the
"locker" letters and attendance at the factfinding hear-
ing. Thus, so far as it appears from its opinion, the court
also assumed , without specific examination , that such
direct notice to individual strikers was essential to effec-
tive discharge. Accordingly, I was directed to receive
additional evidence, presumably as to such individual no-
tices and to make findings on the basis of such evidence.
It was after the remand that I was first required to
focus on the issue of which strikers had been discharged.
At the point, consideration of the facts and legal princi-
ples led me specifically to examine the assumption im-
plicit in my earlier decision. As a result of that examina-
tion, I have concluded that the assumption was neither
required nor warranted. For the reasons hereafter set
forth, I have concluded that the Union was clearly in-
formed of the discharges and its knowledge, as.the strik-
ers' agent, is imputed to each of the strikers.6
It is Hornbook law that "the knowledge of an agent is
imputed to his principal." See, e.g., Eitel v. Schmidlapp,
459 F.2d 609, 615 (4th Cir. 1972), citing Restatement of
Agency. The Board, with judicial approval, has consist-
ently applied this view in many contexts, most notably in
charging employees with their supervisors' knowledge of
employees' union activities. See, e.g., Texas Aluminum v.
NLRB, 435 F.2d 917, 919 (5th Cir. 1970), Red Line
Transfer & Storage Co., 204 NLRB 116 (1973).
There can be little doubt that, as a general principle, a
union is the agent of the employees for whom it is the
collective-bargaining representative For example , as said
by the Supreme Court in Hines v. Anchor Motor Freight,
424 U.S. 554, 563 (1976):
The federal labor laws, in seeking to strengthen the
bargaining position of the average worker in an in-
dustrial economy, provided for the selection of col-
lective-bargaining agents with wide authority to ne-
gotiate and conclude collective-bargaining agree-
ments on behalf of all employees in appropriate
units, as well as to be the employee's agent in the
enforcement and administration of the contract.
Wages, hours, working conditions, seniority, and
job security therefore became the business of certi-
fied or recognized bargaining agents, as did the con-
tractual procedures for the processing and settling
of grievances, including those with respect to dis-
charge.
6 After I had tentatively reached this conclusion , I became aware of
the fact, previously overlooked, that in one of its filings with the Board
Respondent had presented a similar contention , apparently as a matter of
"policy "
WOODLAWN HOSPITAL
A union's position as an agent of the employees it repre-
sents is the legal basis for the duty of fair representation.
See, a g ., L U.E. v. NLRB, 307 F 2d 679, 683 (D.C. Cir.
1962), cert. denied 371 U.S. 936
The Board has recognized a union 's authority and re-
sponsibility as an agent of the employees it represents in
regard to many matters other than negotiating and en-
forcing collective -bargaining agreements . Perhaps most
noteworthy here, because close to the issue under con-
sideration is the recognized authority of a union to
present to an employer unconditional offers by strikers to
return to work. Newspaper Production Co. v. NLRB, 503
F.2d 821, 829 (5th Cir. 1974); Colonial Haven Nursing
Home, 218 NLRB 1007, 1011 (1975). In this very case
the Union exercised that authority and the court sus-
tained the Board's finding that the employees had made
effective unconditional offers.
The converse is also true , i.e., an employer may accept
strikers' requests and effectively offer them reinstatement
by notifying their union. See Stauffer Chemical Co., 242
NLRB 98 (1979), where the Board held that an employ
er did not violate the Act by refusing to reinstate a strik-
er who did not report for work within the reasonable
time provided by the employer in the offer of reinstate-
ment it made to the union as a result of negotiations for a
strike settlement. In that case, the employer and the
union had expressly agreed that the union would be re-
sponsible for notifying the strikers of the reinstatement
offer, but the union had failed to notify one striker, who
filed a charge against the employer when it refused to re-
instate the employee after the date set . In holding that
the employer had violated the Act, the administrative
law judge said (at 101)•
Having entered into a strike settlement agreement
through the normal bargaining process, Respondent
insisted on delegating to the Union the responsibil-
ity for notifying the employees of the terms govern-
ing their return to work . But the obligation to
notify and reinstate striking employees rests solely
with Respondent, and cannot be transferred to the
Union . By making the Union its agent for this pur-
pose, Respondent here must also assume responsibil-
ity for any failure on the part of the Union to suc-
cessfully communicate the terms of the settlement
to all of the striking employees. . . .
Disagreeing with the administrative law judge the Board
said (242 NLRB at 98).
While we do not quarrel with the Administrative
Law Judge 's finding that the responsibility for rein-
stating strikers is exclusively an employer 's, we dis-
agree with his further conclusion that the obligation
to notify striking employees of the recall terms of a
bargained -for strike settlement agreement, at least
under circumstances as here, is also vested immuta-
bly in an employer. The Administrative Law Judge
799
had referred to no Board precedent to support his
conclusion . . . .7
The nub of the Board 's rationale in Stauffer is (242
NLRB at 99)•
As we recognize the intrinsic authority of a union
to extend an offer to return to work on behalf of all
striking employees , we likewise recognize that a
union may also be the proper party : ( 1) to receive
an employer 's acceptance of its offer of the employ-
ee's return , and (2) by agreement , to communicate
the terms of that acceptance to its principals, the
striking employees In the latter circumstances,
which exist here , we would not find that an em-
ployer, like Respondent , thereby had also made the
union its agent for purposes of notifying the em-
ployees and had assumed responsibility for the
union 's failure to notify a striker . . . of the terms
of the recall.
As I read the Stauffer decision, the Board has held8 that
a union acts as the agent of strikers it represents to re-
ceive an employer's offers to reinstate the strikers; the
union is not the employer 's agent, even where the em-
ployer has asked the union to notify the strikers and the
union has agreed to do so The union 's obligation is only
to the strikers, whose agent it is 9 It would appear to be
an anomaly to hold that a union had no authority to re-
ceive from an employer communications to the employ-
ees represented by the union, particularly where, as in
Stauffer and in the present case, the union receives such
communications in the course of negotiations for a con-
tract or strike settlement . Indeed, in many situations an
employer might run the risk of violating the Act by
communicating directly with individual strikers rather
than through their union.
Diligent search has not revealed any cases in which
the Board has advertently decided whether a union may
be an agent of the employees it represents for the pur-
pose of receiving notice of discharge . Since it is normally
unlawful for an employer to discharge strikers as such,
one would not expect to find cases in which the issue of
notice of discharge would be litigated , in the usual case a
union (and/or employees) would claim that strikers were
unlawfully discharged while the employer would main-
tain that they had not been discharged . Pink Supply
Corp., 249 NLRB 674 ( 1980), is a case in point. There, a
group of employees appointed a spokesman to request
that the employer meet with them as a group. When the
spokesman reported to the employees that their request
had been denied, they engaged in a work stoppage. As
' The Board here distinguished Ernst Construction, 217 NLRB 1069
(1975), which the judge had cited Ernst bears no similarity to the present
case
s The Board found a violation on the totally different ground that the
complaining striker had not been replaced when she personally sought re-
instatement
v The apparent absence of any prior direct authority to this effect is
undoubtedly due to the fact(s ) that unions , desirous of taking full credit
for their achievements, probably rarely, if ever, fail to notify the strikers
involved and/or the authority of a union to receive such offers has been
assumed and regularly exercised without question
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
summarized by the majority of the Board panel, the facts
were, in part, that the "Respondent told the employees'
spokesman that, because it needed people to do their
work (while they engaged in a concerted refusal to
work, it would `have to act as though [they] were quit-
ting and find replacements.' When the spokesman denied
that they were quitting, Respondent asked, `Well, what
do you call it? What am I supposed to do?' To these
questions there was no response, except that [the em-
ployees' spokesman] volunteered that the employees
would come in to clean out their desks, and they did so
the next day." The majority of the panel (Members Jen-
kins and Truesdale) affirmed the administrative law
judge's holding that, as contended by the employer, the
evidence did not establish that the employees had been
discharged.10 Chairman Fanning, dissenting in Pink
Supply, was of the view the employees had been dis-
charged. But all of the opinions-by the judge and the
majority and minority of the Board panel-were based
on the "the words spoken in the light of the circum-
stances known to the employees. Majority 249 NLRB at
676. No consideration was given to the fact that the em-
ployer communicated with the employees' "spokesman"
rather than directly with the individual employees. As
noted above a union is the "spokesman" of the persons it
represents.
On the foregoing considerations, I conclude that
notice of the termination of strikers given to the Union
before August 25, 1974, would effectively terminate such
strikers, who therefore would not now be entitled to
Laidlaw reinstatement.
This does not automatically resolve the issue present-
ed. The Union's knowledge of the "locker" letters might
not be decisive, because those letters were not sent to all
of the strikers. However, the "locker" letters began:
Inasmuch as you have resigned your employment in
accordance with established personnel policies of
Woodlawn Hospital, the hospital has found it neces-
sary to permanently replace you.
The position stated would manifestly apply to all strik-
ers. It is clear that union counsel knew the text of the
letters, since on August 18, 1972, he wrote to Respond-
ent, saying. "Your letters of August 4, 1972 to employees
of the Woodlawn Hospital have been referred to me."
As I read its opinion, the court has ruled that a statement
of position made by Respondent's counsel at the factfind-
ing hearing would constitute effective communication of
discharge to any strikers having notice thereof. At the
factfinding hearing on August 2, 1972, "Respondent
stated its position that the majority of the strikers `have
been assumed to have resigned from the hospital "' It
was not explained why counsel limited his claim to a
"majority," 11 but at the September 8, 1972 session he re-
10 No opinion is here expressed as to whether that holding is consist-
ent with the court 's holding in the present case that an "assumed" resig-
nation amounts to a discharge Whatever the answer to that question, the
court 's Woodlawn view is binding here as law of the case ( Woodlawn
Hospital v NLRB, 596 F 2d 1330 (7th Cir 1979) )
11 It appears probable Respondent 's counsel may have been eliminating
strikers who had already returned to work or who no longer wanted em-
ployment by the Hospital While there is no direct record evidence con-
stated the position as being "that the people who stayed
away from work were considered to have terminated
their employment." The court has held, at least by clear
implication, that a statement that a striker is "assumed to
have resigned" is equivalent to a statement that he has
been terminated, '2
On August 6, 1974, still before the Hospital became
subject to the Act, union counsel sent a letter to the Fed-
eral Mediation and Conciliation Service and the Illinois
Department of Labor with copies to counsel and other
representatives of the Hospital), in which he said that the
strike "issues relate to the hospital's refusal to reinstate
approximately 76 employees who were unfairly terminat-
ed." 13
Additionally, I understand the, court's opinion was
ruling that permanently replacing strikers amounts to dis-
charging them.14 The court further said. "Finally and
most importantly the fact that the employer refused to
reinstate all but three of the strikers who applied reveals
indisputably an intention to impair their employee
status." That refusal and a notice of replacement were
contained in a letter to the Union written on August 22,
1974, before the statutory amendment became effective.
At the original hearing in this proceeding, union coun-
sel effectively acknowledged that he knew from the
outset that Respondent's position was that the strikers'
employment had been terminated.1 s
cerning any such strikers, considerably fewer employees requested rein-
statement than had walked out originally and Respondent' s "master list"
of strikers, placed in evidence in the original hearing herein, contains
fewer names than the number of the original strikers
12 To the extent that the General Counsel still argues that none of the
strikers resigned and therefore none were "terminated" under Respond-
ent's resignation policy, their contentions rejected under the court's opin-
ion
19 At the hearing on remand, Gittler attempted to minimize signifi-
cance of the quoted statement, "[I]t's part of the rhetoric-what we call
Labor Board rhetoric-in trying to induce federal mediation to get into
the picture " Despite counsel's statement, I cannot believe that he misrep-
resented his view of the situation in a letter to governmental agencies On
the contrary, his statement was a seemingly noncontroversial statement of
the "obvious "
14 The court said "in Filler Products v NLRB, 376 F 2d 369, 378 fn 3
(4th Cir 1967), the court reiterated that `[o]ne of the established ways to
determine in disputed cases when an employee is discharged is to ascer-
tain when he was replaced' When the union informed Woodlawn
that reinstatement would be sought after the effective date of the Act,
Woodlawn replied that 'permanent replacements have filled the job va-
cancies which resulted from the work stoppage'
is This appears from a colloquy concerning an attempt to obtain a
stipulation Pertinent portions of the colloquy are
Ms GERSTENBERGER [Counsel for the General Counsel] Your
Honor, we have no problem with the fact that that [resignation] pro-
vision is in the manual and that manual was in effect at that
time
JUDGE KLEIN Right, is there anything more you wants
MR GOLDMAN That the Hospital followed that practice . I
don't believe Counsel of charging party and Counsel for General
Counsel have agreed that we invoked that policy
MR GLITTLER [Counsel for the Union] Aren't there some exhibits
that were stipulated to where letters were sent and we stipulated to
those9 And isn't this what we have been hassling about for four or
five years now)
I'm not going to deny the obvious
WOODLAWN HOSPITAL
Accordingly, I conclude that, when viewed in its en-
tirety, the evidence adduced at the original trial estab-
lishes that before August 25, 1974, the Union had been
notified and fully understood that Respondent had termi-
nated all of the strikers 16 Union counsel was under no
misapprehension and had no doubt that, as a practical
matter, Respondent had discharged the strikers. Union
counsel believed that the discharges were unfair. And he
may also have believed that the purported terminations
were not effective because, as a matter of law, the Hos-
pital could not finally terminate the strikers' employee
status. But it has now been definitely ruled that such
legal view was erroneous
The unquestionable fact is that union counsel knew, as
a fact, that Respondent had terminated the employee-em-
ployer relationship. I have previously held that knowl-
edge by the Union is imputed to the employees.'' Ac-
cordingly, I conclude, as a substantive matter, that none
of the strikers are now entitled to reinstatement or back-
pay under Laidlaw.
B. Procedural Issues
The procedural posture of the case should be analyzed
before concluding this discussion. As stated above, upon
receiving the court's remand order, the Board invited the
parties to submit statements of position In a response to
the General Counsel's statement of position, Respond-
ent's counsel set forth substantially the view I have just
adopted.18 As Respondent indicated, its view could have
been adopted on the basis of the record of the original
hearing; no additional evidence was required to support
that position. But the Board did not decide the case on
that basis and its remand order does not specifically refer
to Respondent's argument. To the contrary, in its order,
the Board says that it "cannot determine with certainty
which of these remaining 40 strikers did receive such no-
tification of their termination" and therefore remands the
case to me "for the purpose of holding a further hearing
to receive evidence" and directs me to make "findings of
fact based upon the evidence received pursuant to the
provisions of this Order, conclusions of law, and recom-
mendations." A rigid, logical analysis of the Board's
order would lead to the conclusion that the Board had
rejected Respondent's contention, substantially similar to
the conclusion I have hitherto reached. However, an
16 It may be that some strikers had returned to work or had voluntari-
ly severed the employment relationship (Mississippi Steel Corp, 169
NLRB 647, 633 (1968)) and therefore were not involved in the present
case
17 Union counsel conceded that he represented the strikers
1s Respondent's opposition reads in part
Prior to the institution of the present proceedings, in the real world
there never was any question that the employees had been "terminat-
ed" and that all parties understood that As the Union's counsel
stated, it was "obvious " The General Counsel wishes, however, to
have the Board ignore and deny the "obvious "
As a matter of policy an employer should be able to rely on notice
to the union's counsel acting on behalf of the employees After all,
the request for reinstatement "upon which this entire proceeding is
predicated was written by the Union's representative-not the em-
ployees themselves . If notice from the union on behalf of the
employees is effective as a matter of law, then notice to the union,
which admittedly represented those same employees at that time
must be equally effective
801
equally literal reading of the Board's order shows that,
while I am to make findings of fact based on newly re-
ceived evidence,19 the required "conclusions of law, and
recommendations" are not so limited. As a practical
matter, however, it appears to me that the Board's Order
should not be read so finely. As previously noted, my
original decision, as adopted by the Board, and the
court's opinion proceeded on the unarticulated and es-
sentially unexamined assumption that terminations could
be effectuated only by direct communication between
the Hospital and the individual strikers. That assumption
crept in as a result of the basic issues originally litigated.
The General Counsel and the Union contended that,
under decisions such as NLRB v. Carlisle Lumber Co., 94
F.2d 138 (9th Cir. 1937), cert. denied 304 U.S. 575, per-
sons actively on strike when the Act became effective
have full statutory protection regardless of any prestatu-
tory action by the employer. Respondent maintained that
the strikers had been terminated, but little attention was
given to the subordinate, nonstatutory question of the re-
quirements of a discharge. The General Counsel relied
on Methodist Hospital Kentucky, 227 NLRB 1392 (1977),
holding that a resignation provision did not terminate
striking employees.20 Agreeing with the present Seventh
Circuit decision, the Sixth Circuit has since reversed
Methodist Hospital in pertinent part. 619 F.2d 563 (1980).
It was against this background that the court remand-
ed the case to the Board and the Board in turn remanded
it to me for further evidence and findings concerning the
notice issue. In view of the necessity for further hearing,
it cannot be assumed that the Board at that time intended
to pass on all contentions advanced by the parties; it
would be time enough for such action in a final decision
after all the evidence was in. Similarly, the Board's
action cannot be construed as implying a ruling that Re-
spondent was too late in raising its contention that the
Union's knowledge of Respondent's position should pre-
clude a finding that the employees had not been dis-
charged. Even if it is assumed that ordinarily a party
may not inject new legal arguments in support of his po-
sition after issuance of an administrative law judge's deci-
sion, such rule would not necessarily apply where, as
here, further hearing has been ordered on the very issue
to which the new argument is addressed.
Additionally, the fact that a litigant may not have a
right to consideration of new arguments does not mean
that the deciding officer may not, sua sponte, base his de-
cisions on any legal principles applicable to facts estab-
lished. In my opinion, I would be derelict in my duties if
19 I do not understand the remand order as precluding my appraising
the newly received evidence in conjunction with that in the original
record
20 In my original decision I said
Since the General Counsel and the Union basically contend that
Methodist Hospital is dispositive of all the issues here involved, their
briefs do not deal in detail with the specific situation of the 19 strik-
ers who were notified of their ineligibility for reinstatement Accord-
ingly, the ensuing discussion of their status is directed to Respond-
ent's arguments essentially without the benefit of the views of the
General Counsel and the Union Presumably they can present their
views to the Board if exceptions to this decision are filed
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I knowingly decided any issue contrary to what I be-
lieved was the correct governing legal authority.21
C Practical Considerations
My conclusion that the terminations (or discharges)
were adequately communicated to the employees,
through their agent, appears particularly appropriate to
the particular facts in this case.
It is important to note that the most significant events
transpired in 1972, more than 2 years before the charge
was filed and about 4 years before the complaint was
issued . It is entirely understandable that Respondent
would not exercise special care to maintain and preserve
precise records of such early events because at the time,
it was not subject to the Act and had no reason to antici-
pate that it might be in the future. So far as anyone
could know at the time, the dispute was a purely private
one, not subject to governmental regulation or interven-
tion.22 The controversy was between the Hospital and
the Union over a collective-bargaining agreement. There
was no occasion for direct dealings between the Hospital
and the employees. Individual employees were involved
only to the extent that they struck to support the Union
in the negotiations Thus, it is understandable that the
Hospital would make little effort to dot the i's and cross
the is in its records concerning particular strikers, except
to the extent incidental to staffing the Hospital.
The Union, through its counsel, would have somewhat
more reason to keep good records because it was
charged with the fiduciary duty of protecting the rights
of individual strikers to the extent possible. Yet the
Union's records were at least as deficient as Respond-
ent's. For example, although union counsel had stated at
the factfinding hearing that the locker letter had been
sent to at least 34 employees known to him, when he tes-
tified he was unable to identify even one. Respondent
subpoenaed the Union's records. In the original hearing
in this case, pursuant to Respondent's subpoena, union
counsel produced what was said to be the Union's com-
plete file. The materials thus produced were sparse, in-
cluding, for example, only four locker letters although
many more had been referred to union counsel.
Neither the Union nor Respondent can be seriously
faulted for not preserving the systematic records con-
cerning individual strikers before the Act became appli-
cable. Both parties presumably maintained what they
considered to be negotiating a strike settlement and,
hopefully, a collective-bargaining agreement.
The parties to this proceeding (i.e., the General Coun-
sel, the Union, and the Hospital) agree that the "burden
of proof" is on the Respondent to establish the prestatu-
tory discharge of strikers. But precisely how that
"burden of proof" can be met is not self-evident. The
record establishes that between 34 and 50 employees re-
ceived "locker" letters, which were referred to union
counsel. And counsel complained that all the strikers,
some 76, had been terminated. These facts would appear
21 This view would not necessarily be applicable to "policy" consider-
ations, as distinguished from "rules of law "
22 Neither the Union nor the General Counsel suggests that any provi-
sions of state law might have been involved
to constitute a prima facie showing that termination of
the 40 strikers now involved had been effectively com-
municated to the Union . To rule now that the Hospital
must now reinstate 40 strikers, with backpay23 because it
cannot affirmatively identify all the individuals whom it
personally notified would be a harsh remedy , particularly
in view of the absence of any showing that either the
Union or any individual striker was prejudiced by the
absence of individual notice of termination . Such a ruling
would discriminate among the strikers and penalize the
Hospital , even though there is no evidence that the Hos-
pital had any ulterior motive or acted on any discrimina-
tory motivation.
All considerations of equity and practicality in this
case support the wisdom of applying the time -honored
rule that a union , as the agent of the persons it repre-
sents, is the proper party to receive notice on their
behalf from the employer . There is no evidence to rebut
the Hospital 's prima facie showing that all the strikers
were notified , through their Union , that their employ-
ment was terminated before the statute became effective.
If any of the strikers had been prejudiced by the absence
of individual notice, their complaints would have to be
against the Union . Cf. Stauffer Chemical Co., supra, 242
NLRB 98 ( 1979).24
III. THE INDIVIDUAL STRIKERS
As previously set forth, the Board's remand order di-
rected me to make findings of fact on the basis of evi-
dence received in the hearing on remand. I shall here
execute that direction. Such findings are in any event de-
sirable to avoid further delay should the Board reject my
conclusion that all strikers were notified of their termina-
tions by reason of the Union's knowledge.
A. Procedural Issues
Shortly after the judicial remand, Respondent filed
with the Board a motion to transfer proceedings to ad-
ministrative law judge for "a supplemental hearing at
which additional evidence would be taken from all par-
ties to identify those individual strikers who received
notice of their terminations." Union counsel stated that it
had "no objection to remanding the proceedings" to an
administrative law judge. The Board then invited the
parties to submit statements of position.
In its statement of position, Respondent maintained
that "effective discharges of all the strikers prior to
August 25, 1974 [had] been proven" in the original hear-
ing. However, Respondent added that, if the Board re-
jected that contention, Respondent was "prepared to
present evidence going to the discharge of each particu-
22 As of now the backpay period would be 6 years, i e, since August
25, 1974
24 It is unnecessary, although desirable, to add that the apparent con-
flict between the present decision and my original conclusion stems from
the court 's rejection of my factual findings that Respondent had engaged
in "tactical maneuvers," without any real intention to discharge the strik-
ers, and/or had condoned the strikers' conduct and rescinded the termi-
nation Because of the court's decision, I reject the Union's current argu-
ment that the evidence received on the remand reinforces a "tactical ma-
neuvers" finding
WOODLAWN HOSPITAL
lar worker " Respondent also stated that it had "located
additional evidence, previously not available, which
shows that the 40 remaining strikers were also effectively
notified" of their terminations. Union counsel stated its
position that the original record was sufficient to permit
the Board to decide that none of the 40 strikers had been
notified of their terminations and therefore no remand to
an administrative law judge was necessary. The General
Counsel "oppose[d] both Respondent's motion to transfer
the case herein to the Administrative Law Judge and its
motion to reopen the record, and urge[d] the Board" to
dispose of the case "on the existing record " She main-
tained that the termination issue had been "fully and
fairly litigated" and "was, in fact, the primary issue liti-
gated by the parties." She proceeded to summarize the
relevant evidence, which she contended failed to estab-
lish that the strikers had not been notified of termination.
Respondent countered with a lengthy document in
which, as noted above, it argued that notice to the Union
was sufficient and that "even without further evidence
[the original] record, taken as a whole, reveals that
Woodlawn effectively communicated its intention to dis-
charge the 40 remaining strikers to those strikers individ-
ually " Attached to Respondent's document was an affi-
davit of counsel describing certain evidence wuch had
been found after the original hearing and would be of-
fered at a further hearing.25 After some further maneu-
vers by the parties, the Board issued its remand order.
At the remand hearing, and in their posttrial briefs, the
General Counsel and the Union vigorously contended
that none of Respondent's tendered evidence should be
received because Respondent had not made an adequate
showing that it could not have presented the evidence at
the first trial if it had exercised due diligence. To estab-
lish the consistency of their position with the Board's
action , the General Counsel and the Union alluded to a
footnote in the Board's remand order reading, in part:
In light of our determination here that a further
hearing is necessary to resolve the issues left open
by the appellate court's decision, we find that the
General Counsel's position is not prejudiced by the
newly discovered material. Any newly discovered
material and arguments relating to its [admissibility]
should be addressed to the Administrative Law
Judge at the hearing [convened] pursuant to this
Order.
The General Counsel apparently contends that, when
the Board said that "newly discovered material and argu-
ments relating to its [admissibility] should be addressed
to the Administrative Law Judge," it intended that I
should rule on "admissibility" under Section 102.48(d)(1)
of its Regulations, governing requests for reconsider-
ation, rehearing, or reopening of the record after a Board
decision. I do not so understand the Board's order. The
25 The evidence Respondent produced at the hearing did not com-
pletely conform to the description in counsel 's affidavit For example, the
affidavit said that Respondent had "discovered a box which included
some of the return receipts showing that in fact [24] named strikers re-
ceived the August 4, 1972 ' locker letters Only four return receipts
were produced at the hearing
803
Board denied the General Counsel's motion to strike the
portions of Respondent's response and the affidavit at-
tached thereto, in which Respondent described the
"newly discovered" evidence it proposed to offer In
taking that action, the Board found "that the General
Counsel's position is not prejudiced by the newly discov-
ered material." I read the quoted language as reflecting
the practical view that Section 102.48(d)(1) of the
Board 's Regulations and similar judicial rules , such as
Rule 60 (b)(2) of the Federal Rules of Civil Procedure,
which the General Counsel cites, are designed to prevent
unduly protracted litigation and to provide timely finali-
ty. However, in the present case, the Board has held that
further evidence should now be received. Thus, the re-
ceipt of evidence not meeting the standards of Section
102.48(d)(1) could not delay final resolution of the case
to any appreciable degree, if at all To exclude relevant
evidence under such circumstances would impede the
search for the facts, without substantially furthering any
competing interest. Since I was directed to receive evi-
dence and making findings concerning the notices of ter-
mination, and the original record was inadequate , I exer-
cised my discretion to permit litigation de novo. I here
reaffirm that ruling.
In its opinion, the court said:
Since these two events, the "locker" letter and the
announcement at the [factfinding] hearings, constitute
the only efforts to inform the employees of their termi-
nation , we find it necessary to remand to the Board
to determine who was informed of their discharge
by the employer . [Emphasis added.]
I do not understand the italicized portion of the court's
decision to constitute a definitive finding that no employ-
ees received effective notice by other means other than
the locker letters or the factfinding hearings . Thus, I re-
ceived evidence and shall state findings concerning other
methods of communication now claimed by Respondent.
Finally, the Board 's remand Order directs me to make
"findings of fact based upon the evidence received pur-
suant to the provisions of this Order " I do not under-
stand the quoted language as precluding my making find-
ings on the basis of all the evidence , including that in the
original hearing , to the extent that the court has not
made binding findings.
B The Means of Communication
I The "Locker" letters
a. The evidence
As previously noted, at the first hearing it was shown
that union counsel had conceded, that the "locker" letter
had been sent to a minimum of 34 strikers. David J.
Koszut, administrative assistant at the Hospital in 1972
(and assistant administrator at the time of the hearings in
this proceeding), testified in the 1976 hearing that he,had
directed his secretary to prepare copies of the letter and
sent them to all striking employees who had lockers at
the Hospital, who numbered at least 50 He said that
"[t]here had been a locker list of people who had lockers
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which was based upon the distribution of locks to
peopld " At the time of the original hearing herein, he
had been unable to find the list.
Koszut's testimony was considerably different at the
remand hearing. He there testified the list actually used
in the mailing had been written by Jerrold Sager, Esq.,
then Respondent's counsel, based on the decision of Hos-
pital Administrator Samuel J. Eblen, Koszut, and Sager
as to whom should receive it. Koszut further testified
that the names on the Sager list had been taken from the
"lock list " But then it appeared that the "lock list" was
not coextensive with a list of employees having lockers,
since some employees had lockers but did not have locks
provided by the Hospital. Since the first hearing, Koszut
had found the "lock list." While the list is far from clear
or self-explanatory,26 it appears to show assignments of
some 125 locks out of a total of 375. Of the 125 assign-
ments, around 20 appear to be strikers, 15 of whom are
involved herein.27 There is nothing on the list identify-
ing the strikers or suggesting that names had been taken
from it for any purpose.
Koszut testified that he gave his secretary a draft of
the "locker" letter, which was to be signed by Eblen,
who had participated in composing it. Koszut instructed
the secretary to prepare 50 or 60 copies of the letter ad-
dressed to the persons on the list he provided He said
the addresses had been obtained from Hospital records
either by his secretary or by the personnel director, nei-
ther of whom testified. Koszut further testified that he
watched his secretary run the letters off and helped her
stuff the envelopes. He did not indicate whether Eblen's
signature was automatically affixed or if and when Eblen
actually signed.
Koszut did not testify to personal observation or
knowledge of the actual mailing of the letters. However,
he testified that the Hospital's established routine was
that the secretaries prepared material for mailing and
then gave it to a security guard, who then deposited it in
the mail . Neither Koszut's secretary nor the security
guard who presumably posted the "locker" letters testi-
fied.
Before resting, Respondent called four strikers as wit-
nesses- Edna Johnson, Frank Cheers, Myrtle Jackson,
and Lucille White. The name of only one, Myrtle Jack-
son, appears on the "lock list." However, all four testi-
fied that they had assigned lockers. None of them could
recall having received a "locker" letter.
At the end of Respondent's case, the General Counsel
called three striker witnesses. Katie Lyons testified that
she had shared a locker with employee Idella Stewart.
The name "L. Stewart" appears on the "lock list " On
direct 'examination, Lyons testified that she did not re-
26 it contains many names crossed out , some with other names substi-
tuted Since the list contains no dates, it is impossible to say with any
confidence who had Hospital-provided locks on August 4, 1972, when
the "locker" letters were sent out
27 Contrary to the General Counsel's position, I find that, with one
exception, the strikers involved are adequately identified, even though
the list contains only initials of their first names The exception is "E
Johnson" on the list, whereas there are strikers named Edna Johnson and
Eddie Mae Johnson
One striker is named "Alice Jackson " The name "A Jackson" had ap-
peared on the "lock list" but had been crossed out
ceive the "locker" letter.28 There is no evidence that
Idella Stewart received the letter.
The General Counsel next called striker Elsie Mae
Lyons, whose name appears on the "lock list." She testi-
fied that she had had a locker but not a Hospital-provid-
ed lock She further denied that she had ever received
the "locker" letter However, as Respondent contends,
Lyons' testimony is unreliable because her memory was
obviously and concededly faulty
The General Counsel's last witness was Trudie
Rogers.29 The name "T. Rogers" appears on the "lock
list." Rogers testified that she had a locker and a lock
but could not recall whether the lock was her own or
one provided by the Hospital. Her testimony about re-
ceipt of the "locker" letter was confused, and her
memory was obviously vague and unreliable.
Respondent also maintains that mailing of the "locker"
letters to some strikers is established by subsequent con-
duct with respect to the lockers The "locker" letters
asked the recipients to visit the Hospital and remove
their personal belongings from their lockers Koszut
named only one striker who had done so.30 He testified
that thereafter he personally cleaned out additional lock-
ers and, at the remand hearing, he named 18 strikers
whose lockers he had emptied. As the General Counsel
argues, this identification is of little or no probative value
because it was based only on Koszut's observation of the
names on the lockers and the articles removed therefrom
weeks after the "locker" letters were sent. Koszut identi-
fied Katie Lyons as one of the strikers whose lockers he
had emptied. But, as noted above, Lyons' name did not
appear on the "lock list," and Koszut did not name
Idella Stewart, with whom Lyons shared a locker.
Receipt of the "locker" letter by five strikers was
shown by documentary evidence. Respondent placed in
evidence return receipts signed by four and the letters re-
ceived by four, which were obtained by subpoena of the
Union's records. Because of overlapping, the total
number of strikers so identified was five.3 t
b. Conclusion as to the "locker" letters
The Union contends that "the evidence now in the
record . . indicates more clearly than before that the
locker letter was in fact only a `tactical maneuver' and it
should be disregarded ." I reject this argument because,
28 In its brief, Respondent incorrectly states that Lyons "did not deny
receiving it " Reference is made to her cross-examination , as showing
that she testified only that she did not recall receiving a "locker" letter
But the testimony on cross-examination was adduced by the following
misleading question by Respondent 's counsel "Now, you were asked by
the Government's lawyer whether or not you recall receiving [the
'locker' letter] I believe your testimony was, and you correct me if I'm
wrong, that you do not remember ever having received that letter "
Lyons replied "No I don't remember receiving this letter When further
pressed, she said she did not think it was possible that she had received
the "locker" letter
29 Although the transcript spells the first name "Trudy" and Respond-
ent's brief spells the last name "Rodgers, " an acknowledged signature in
the record reads "Trudie Rogers "
30 That employee, Jasper McKenzie, is not listed on the "lock list" and
is not involved in this case
31 Bernice Bell, Hattie Johnson, Veronica McAdory, Ann Worthing-
ton, and Mary Lee Payton
WOODLAWN HOSPITAL
as I read its opinion , the court has already rejected my
"tactical maneuver" finding and has definitively held that
receipt of that letter by a striker would establish his ter-
mination
The General Counsel and the Union argue that Re-
spondent's evidence is unreliable and cannot be held to
establish receipt of the "locker " letter by more than the
five strikers as to whom Respondent introduced postal
return receipts and/or actual letters obtained from the
Union's files . Because of the conclusion reached, I deem
it unnecessary to pass on most of the parties' arguments
concerning credibility . For example , I decline to draw
adverse inferences from Respondent 's failure to call Kos-
zut's secretary , Hospital Administrator Eblen, or the se-
curity guard who presumably deposited the "locker" let-
ters in the mail It is reasonable to assume that their
memories , like those of all other witnesses , were far from
precise as to details back in 1972 Koszut's secretary and
the security were apparently engaged in purely ministeri-
al acts32 and Eblen apparently played no role in the
actual mailing It is reasonable to assume that, before tes-
tifying, Koszut discussed the preparation of the mailing
list with Eblen and Sager . Without passing on the credi-
bility of the witnesses , for the reasons set forth below, I
find that the record is sufficient to establish only that
five of the strikers here involved received notice of ter-
mination through the "locker" letters.
The fatal deficiency in Respondent 's evidence is the
absence of any reliable evidence identifying the strikers
to whom the "locker" letters were sent. The "lock" list,
the only list in evidence , is obviously not the list used.
Koszut eventually so testified Further, and more signifi-
cantly, that list, even if it is assumed to be intelligible,
lists no more than around 20 strikers , yet Koszut main-
tained that at least 50 letters were sent and it has hereto-
fore been found that between 34 and 50 were received
Additionally , documentary evidence establishes that
some letters were received by persons whose names do
not appear on the "locker list." When Koszut , on cross-
examination at the remand hearing, eventually testified
that "[e]verybody who had a locker received a locker
letter," he was unable to state which employees had
lockers and provided no enlightenment as to how it was
determined which strikers had lockers It is clear that the
letters were not sent to all strikers since some 76 employ-
ees went out on strike and on November 14, 1972, over 2
months after the "locker " letters, Respondent wrote to
65 strikers , whereas Koszut claimed only that 50
"locker" letters had been sent.
Koszut 's emptying the lockers of some 18 strikers does
not establish that "locker" letters were sent to them. If,
as Koszut testified , the Hospital was in need of locker
space for current employees (including strike replace-
32 It appears to me that a presumption that ministerial work has been
performed according to established routine is at least as well grounded in
common experience as is the legally recognized presumption that proper-
ly addressed mail deposited in the post is received by the addressees
Stage Employees IA TSE (K-B Theaters), 238 NLRB 507, 509 (1978) There
is no reason to assume that the addresses on the letters were inaccurate,
since the exigencies of trying to run the Hospital would appear to require
generally up -to-date and accurate information as to the employees' ad-
dresses And union counsel conceded that at least 34 letters were re-
ceived
805
ments), it would be reasonable for Koszut to empty the
lockers, probably storing the contents in safekeeping
pending the strikers ' requests therefor . 33 Koszut did not
indicate that he had been advised or believed that ad-
vance notice to the locker holders was a condition prece-
dent to his right to retrieve the lockers 34 Thus, the fact
that he emptied lockers would not tend to establish that
"locker" letters had previously been sent to the holders
of the lockers.
In view of the vacillation in Koszut 's testimony, and
the absence of documentary or other evidence corrobo-
rating Koszut's apparently final testimony that the
"locker" letters had been sent to all employees using
lockers, I reject Respondent 's contention that it made a
prima facie showing that the "locker " letter was sent to
24 "named claimants" in addition to the 5 whose receipt
thereof is established by documentary evidence . Thus, I
find that Respondent established the identity of only five,
individual strikers who received notice of their termina-
tions by means of the "locker" letters, namely, Bernice
Bell, Hattie Johnson, Veronica McAdory, Ann Wor-
thington , and Mary Lee Payton
2. The factfinding hearings
a. The evidence
As previously noted, the court referred to Respond-
ent's counsel's "announcement at the [factfinding] hear-
ings" as one of the two "efforts to inform the employees
of their termination ." The record establishes that at the
factfinding hearing on August 2, 1972, Respondent's
counsel said that a "majority of the employees who left,
work to engage in the strike action have been assumed to
have resigned from the Hospital ." At the factfinding ses-
sion on September 8, 1972, Respondent 's counsel stated,
that the "locker" letter "was sent to people pursuant to a
statement that was made at this hearing, at the last meet-
ing we had where we indicated that the people who
stayed away from work were considered to have termi-
nated their employment , pursuant to the employee
manual ." The relevant "resignation" provision in the
manual was neither read nor summarized aloud.
At the September 8, 1972, factfinding session, Re-;
spondent ' s counsel also said:
Of 117 employees in the original unit, 74 joined in
the strike and 43 stayed at work Woodlawn Hospi-
tal has hired replacements for the strikers and is
now operated quite efficiently with 95 employees in
the unit involved
The record further shows that 21 of the strikers here
involved signed in at the August 2, 1972 factfinding
hearing and 23 at the September 8 session . Of these, 17
signed in at both sessions , 4 only on August 2, and 6
only on September 8.3s
33 The contents could not be found at the time of the hearings herein
34 He knew the combinations of the Hospital - provided locks , but 11 of
the 18 lockers he emptied apparently had locks belonging to the individ-
ual holders
35 There is also evidence that some additional strikeis may have at-
tended the factfindmg hearing but did not sign in
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b Discussion and conclusion
The General Counsel argues persuasively that the
statements of Respondent's counsel at the factfinding
hearings were not sufficient to alert individual strikers of
the termination of their employment It is doubtful that
referring to their having resigned, without spelling out
the provision in the manual, would inform any employee
that he had been discharged This is particularly true
where the statement referred only to a "majority" of the
strikers. Each individual striker knew he had not "re-
signed," might reasonably understand counsel's statement
as referring to unidentified strikers who had given notice
of resignation . Counsel 's statement on September 8 some-
what more clearly referred to "the people who stayed
away from work"; but that statement was expressly tied
to the "statement that was made at . . last meeting " It
can reasonably be argued that counsel's statements were
ambiguous and thus did not meet Respondent 's obliga-
tion "to clearly inform the workers of their discharge,"
as required by the court's opinion
Similarly, as the General Counsel notes, at the fact-
finding hearing, Hospital counsel referred to "replace-
ments," but, unlike the "locker" letters, did not describe
them as "permanent ." 36 A striker hearing the statement
might well believe that the replacements were only tem-
porary and/or that , because of the substantial reduction
in the number of unit employees, there were existing va-
cancies which strikers could fill.
It may be added that the considerations just set forth
are not inconsistent with my earlier finding that union
counsel was fully aware of Respondent 's position that all
the strikers had been terminated Inferences which a
lawyer would necessarily draw might well be far from
evident to laymen. Although I am inclined to believe
that counsel 's statements at the factfinding hearings were
not sufficient to inform the strikers of their discharge, I
deem it unnecessary to make any finding or conclusion
on that score, since I find that Respondent has failed to
establish which , if any, strikers heard counsel 's state-
ments.
I reject Respondent 's contention that mere attendance
at the factfinding hearings at some time would establish
knowledge of Respondent 's position . There was no evi-
dence that any strikers had been present when the rele-
vant statements were made. As I read its opinion, the
court in the present case ruled that notice of termination
could be effective only as to those strikers who were ac-
tually present and in a position to hear counsel 's state-
ments when they were made . This conclusion follows
from the Court's noting that in NLRB v. Fansteel Corp ,
306 U.S 240 (1939), "the [Supreme] Court found that the
strikers who were not in the building at the time of the
announcement were not `within the announcement of dis-
charge.' 306 U S. at 259." In a footnote, the Seventh Cir-
cuit in the present case stated that in Fansteel "there had
been no effective discharge of these men because they
were not inside the building to hear it ." Additionally, as
relevant to the strikers who were present , it is noted that
36 Obviously , informing the replacements that they were "permanent"
would not constitute notice thereof to the strikers
the announcement in Fansteel was made "in loud tones,"
a fact not shown in the present case
The conclusion I have reached on Respondent's
meager evidence is reinforced by the testimony of Union
President Irving Kurasch, which I received over Re-
spondent's objection at the remand hearing Kurasch tes-
tified that the factfinding hearings were held only a short
distance from the Hospital "and while most of us were at
the hearing room, we sort of used it as a strike headquar-
ters " Strikers were advised to report to the hearing
room to receive money from the Union and to arrange
"for manning of the strike line." Kurasch said the pur-
pose of the sign-in sheets was to conduct "our business
. . of carrying on the strike " At the time, picketing
was being conducted around the clock, with strikers gen-
erally serving 4-hour stints Strikers came and went fre-
quently at the factfinding hearings because of other
needs, such as picketing, babysitting, and attending to
other jobs. Kurasch also testified that the order of signa-
tures on the sign -in lists did not reflect the order in
which the strikers arrived or left He estimated the
number of strikers present in the hearing room at any
one time as "anywhere from two to fifteen or twenty or
more." No representative of Respondent who had at-
tended the factfinding hearings identified any strikers
who had been present when Respondent's position was
stated 37
Accordingly, I find that Respondent has not shown
that any identifiable strikers were individually notified of
their discharge at the factfinding hearings.
3. Telephonic notice
a. The evidence
At the remand hearing , Respondent called Leroy
Brown, who, as an employee of Service Master Corpora-
tion , had served as the manager of Respondent's house-
keeping department in 1972. Brown testified that, on the
day after the strike began , on Koszut's direction , he tele-
phoned the female employees in the housekeeping de-
partment. He named five whom he specifically recalled
telephoning He could not specifically remember calling
Adzetter Farr, but said: "If they worked in Housekeep-
ing I telephoned them . At least I tried ." He then said
that as far as he could recall , he talked to all of them,
but added : "72 is a long time ago." On cross-examina-
tion, Brown testified that there were about 21 or 22 em-
ployees in the housekeeping department , of which he
"would say at least 16" were women . He conceded that
he could not recall how many he had actually reached
On direct examination , Brown testified-
I told them that within the hospital policies that
they had three days to report back to work. If not,
they had to be terminated.
He then testified that he thought "each one of them
that [he] talked to were more or less afraid, more than
37 Kurasch named one or two union activists who he "assumed" were
probably present all or most of the time Neither of the persons he named
is involved in the present decision
WOODLAWN HOSPITAL
anything else, to cross the picket line because the union,
they were violent " He later repeated that "most of them
were, they was afraid . . to cross the picket line"
When asked if he offered them protection, he replied:
"later on we did. Not at the present ." Still later he said
that "some of them " said they were afraid to cross the
picket line. When asked what, if anything , he had said in
reply, Brown testified : "Well, I mean , I could understand
why they was afraid but there was nothing I could do
. . . If anything I probably told them that we could
protect them as long as they was in the hospital " He
then disclosed that "a lot of them was out on the picket
line." Acknowledging that those who were picketing
would probably not have expressed fear of crossing the
picket line, Brown said he could not recall how many
stayed away out of fear and how many as a matter of
principle
Several times Brown stated that he could not recall
details of specific telephone calls occurring some 7-1/2
years earlier While his failure of precise memory is un-
derstandable , it rendered his testimony insufficient to
identify any particular employee whom he effectively
notified of their termination.
Brown also testified that while he was telephoning the
female employees of the housekeeping department, Oscar
Cobb38 was telephoning their male colleagues. But
Brown did not provide any detail as to Cobb 's activities.
Since Cobb did not testify , there is no evidence to estab-
lish which , if any, male employees of the housekeeping
department may have been notified of termination within
the period immediately following the start of the strike.
Trudie Rogers, a female employee in the housekeeping
department , testified that, a day or two after the strike
began , Cobb telephoned her at her home and asked her
to return to work . When she said she would like to, but
was afraid , Cobb said they would protect her if she re-
turned She did not return . She said she did not recall
Cobb 's warning , in the words of Respondent 's counsel's
leading question , "that unless [she] came back , that [she]
could lose [her] job with the hospital ." In answer to an-
other leading question , on recross -examination by Re-
spondent ' s counsel , she denied that Cobb had told her
she could lose her job if she did not report for work for
3 days. Cobb did not testify.
Katie Lyons, called by the General Counsel, testified
that , when she arrived at the hospital on the first day of
the strike , the pickets prevented her entering . Thereafter,
she did not report for work because she was afraid to
She testified that on the first or second day of the strike
she received a telephone call from Hughbungin , her su-
pervisor in the nursing department . Lyon's testimony
was:
The best I can remember [Hughbungin ] said, "We
want you to come back and we will protect you.
You'll be protected on the hospital grounds," but I
told her I didn't want to do that I was afraid, so
se Brown first identified Cobb as his supervisor, but later testified that
he (Brown ) was Cobb' s supervisor Like Brown , Cobb was actually em-
ployed by Service Master , an independent contractor of Respondent
807
she said , "If you wait too long you might lose your
job.,,
Lyons maintained that Hughbungin had not referred to a
grace period of 3 days or any other specified time.
Hughbungin did not testify.
b. Conclusion
For the purpose of this decision , I assume (without
making any affirmative finding) that Brown was an au-
thorized agent of Respondent As noted above, he testi-
fied that there were 21 or 22 employees in the house-
keeping department and he spoke to at least 16, who
were female. The unreliability of Brown 's testimony is
perhaps best shown by the fact that , in its brief, Re-
spondent maintains only that. "In view of Brown's testi-
mony, the permissible inference is that Brown and Cobb
called all fourteen housekeeping employees."
The vagueness of Brown's testimony , along with his
demeanor , have led me to place no reliance on it in the
absence of corroboration There was no corroboration.
Additionally, his message to the strikers , as summa-
rized by him, did not amount to a notice that they had
been discharged ; it was at most a threat of future dis-
charge. And Brown did not undertake to say what Cobb
had said in conversations with male employees in the
housekeeping department . The only specific evidence
concerning any statement was given by Rogers. Accord-
ing to Rogers, Cobb did not refer to termination or dis-
charge. It is true that Rogers ' memory was obviously de-
ficient. But if her testimony is disregarded , there is no
evidence concerning Cobb' s calls to any strikers.
On all the evidence , I conclude that Respondent has
failed to establish that any striker was informed of his
termination by telephonic communication.
4. Summary conclusion
On the foregoing analysis of the evidence , I find that
Respondent has shown that , of the 40 strikers whose stat-
utory status as employees is in issue here, 5 received per-
sonal notice of their terminations before August 25, 1974
Those five are Bernice Bell, Hattie Johnson , Veronica
McAdory, Ann Worthington, and Mary Lee Payton.
Thus, if direct personal notice to the individual strikers is
necessary, the remaining 35 strikers39 here involved are
entitled to reinstatement and backpay under Laidlaw
Corp., supra, 171 NLRB 1366 Included within that
group are Josie Wells, Fannie Speight, and Juarine
McCants, who were rehired as "new " employees around
August 26, 1974 , as well as Alice Jackson , Eddie Mae
Johnson , and Adzetter Farr, who accepted reemploy-
ment but were then declared ineligible for failure to pass
a preemployment physical examination
CONCLUSION OF LAW
The employment of the strikers involved herein was
effectively terminated before August 25, 1974, when Re-
spondent became subject to the Act. Accordingly, none
as See App A hereto
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the strikers is entitled to reinstatement and/or backpay
under the Act, as construed in Laidlaw Corp, supra
On these findings of fact and conclusion of law and on
the entire record '40 I issue the following recommend-
ed41
ORDER
The complaint is dismissed in its entirety.
40 The General Counsel's unopposed motion to correct the transcript
of the hearing on remand is granted Although there are numerous other
errors in the transcript , no separate corrective order is being issued be-
cause most of the errors are self-evident and/or unsubstantial or because,
in other instances , it is impossible to reconstruct precisely what was said
41 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 , 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
APPENDIX A
Strikers Not Individually Notified of Discharge or
Termination Before August 25, 1974
Jimmye Doris Arnold
Katie Lyons
Louis Hardin
Mae E. Smith
Lucille White
Ernestine Ellis
Alice Jackson
Edna Johnson
Pearline King
Trudie Rogers
Betty Ruff
Walter Sawyer
Juarine McCants
Donella Pender
Ruby Lee Davis
Rosia Maxine Farr
Bobbie Kimbrough
Mary Francis Lee
Earlie Davis
Margaret Hatcher
Larry Johnson
Olean Porter
Fannie Speight
Jamie Thompson
Charles Streater
Frank Cheers
Adzetter Farr
Myrtle Jackson
Eddie Mae Johnson
Carrie Kindred
Elsie Mae Lyons
Angie Lee McFerson
Josie B Wells
Dorothy White
Lucinda Badger